—Jeffrey Goldsworthy, Emeritus Professor of Law, Monash University, Adjunct Professor of Law, The University of Adelaide

Se-shauna Wheatle’s book concerns judicial reasoning in human rights cases that purports to be based on “unwritten” or “implied” constitutional principles (terms she treats as synonymous).[1] The book’s coverage is limited in several respects. First, it concerns – for good reasons – just four common law jurisdictions: Australia, Canada, the Caribbean, and the U.K. Secondly, it focuses almost entirely on two such principles: the separation of powers and the rule of law. Since even this required her to read an enormous amount of case-law and commentary, it should not be criticised. But in Australia, much recent debate about implied principles has concerned an “implied freedom of political communication” that the High Court purported to discover in 1992. Had Wheatle investigated that, she would have found more critical scholarly analysis of implied principles.[2] Thirdly, her book does not aim to evaluate the legal propriety of judicial decisions purportedly relying on unwritten principles.[3] Instead, it aims to provide background information, categorisations and analytical distinctions that can assist the evaluative task. It aims to clarify: (a) why judges resort to implied principles; (b) the various “functions” they serve; and (c) the different categories and “sources” of such principles.[4] In her penultimate chapter, Wheatle offers some preliminary observations that connect these themes and distinctions to questions about the legitimacy of judicial reliance on implied constitutional principles. But these are intended to be merely “a prolegomenon to normative analysis.”[5]

No-one seriously interested in the interpretation of constitutions or bills of rights can ignore purportedly “implied” or “unwritten” principles. Judges keen to reach particular conclusions in order to do justice, protect human rights or promote good governance, but can find no real basis for doing so in relevant legal texts, will be strongly tempted to appeal to such principles as a rationalisation of last resort. But this is not to say that such principles never exist, and that judicial reliance on them is always disingenuous (or, as some prefer to say, “creative”[6]). One of the most difficult and important questions for any theory of legal interpretation is to help us distinguish between genuinely implied legal principles and judicially fabricated ones. Another is to establish whether and when judges are legally as well as morally justified in fabricating them.

This book does not attempt to construct such a theory, but will prove useful to those who do.

It provides a rich trove of case studies from which Wheatle draws many distinctions that will assist in further analysis and theory construction, although these will need to be improved on. For example, she distinguishes between five different kinds of implied or unwritten principles: (1) those that are synonymous with terms in the constitutional text; (2) those that are inferred (presumably by induction) from express provisions characterised as particular applications of them; (3) those that are implied by the structure of the text; (4) those found in constitutional preambles that are supposedly non-justiciable; and (5) those “said to emanate from the unwritten British Constitution” from which the written Constitutions she studies “derive much of their inspiration”.[7]

The first category seems misconceived: a principle that is synonymous with a textual provision is surely expressed and not implied (just as a statement about bachelors is expressly and not impliedly about unmarried men). Under the fifth category it may be necessary to distinguish between principles recognised at common law and those that are solely matters of constitutional convention. And there may be other categories: for example, principles that are implicit in constitutions, rather than implied by them, in the sense that they are simply presupposed or taken for granted.[8] Furthermore, it is not clear into which category Wheatle would fit the common judicial argument that an implication is “necessary” for part of a written constitution to achieve its purpose[9] (this may but need not be a “structural” argument).

To my mind, Wheatle is often insufficiently sceptical about purported implied or unwritten principles. For example, she frequently discusses the claim of “common law constitutionalists” such as Trevor Allen and Mark Walters, that unwritten common law principles underpin written constitutions and can invalidate statutes, without giving anything like equal time to powerful (in my view, devastating) criticisms. I was surprised that my own two books on the doctrine of parliamentary sovereignty, the second of which includes a lengthy chapter titled “The Myth of the Common Law Constitution”, are nowhere mentioned.[10] I would also have preferred more frequent use of cautionary adjectives such as “supposed” or “purported” in relation to implied principles, to indicate that the most important theoretical and normative questions sometimes concern not just their “use” but their very existence.

Wheatle rightly argues that such principles are less controversial when used to interpret express constitutional provisions; purposive interpretation is generally well-accepted, and the purpose of a provision may be to give effect – even if only partially – to some deeper principle. But they are much more controversial when used as independent grounds for invalidating statutes, and rightly so. She argues that this often happens when there is a “gap” in the express provisions of a constitution or bill of rights.[11] But is a “gap” just a failure of the law to protect some right or interest that the judges believe it ought to protect? If so, are the judges justified in adding that protection to the law, and in effect amending it? It is well known that the framers of the Canadian Charter of Rights deliberately omitted protection of a right to property; could neo-liberal judges justifiably deem that to be a “gap” they are justified in filling?

The issue of implied constitutional principles is certainly becoming more topical. It is a pity that Wheatle’s book appeared at the same time as – and so could not discuss – Lisa Burton-Crawford’s “The Rule of Law and the Australian Constitution”,[12] which is a meticulous examination of claims that the rule of law is a justiciable principle that is somehow implicit in or implied by the Australian Constitution. No doubt more books on the general topic are in preparation; one is a collection edited by Rosalind Dixon and Adrienne Stone titled “The Invisible Constitution” (forthcoming Cambridge University Press).

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